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2. ARISING FROM FAILURE OF EXPRESS TRUSTS

EASTERBROOKS et al. v. TILLINGHAST.

(Supreme Judicial Court of Massachusetts, 1855. 5 Gray, 17.)

Bill by Anne Easterbrooks and others, heirs at law of Elery Wood, against Thomas Tillinghast, to obtain a release of a homestead held by the said Wood upon the following trusts: "That said trustee and trustees shall use and improve the same, or lease the same from time to time to good and trusty tenants, in such manner as will best secure the income and profits thereof; and that said trustee and trustees shall not sell my farm, but out of the income thereof shall keep the walls and buildings in good repair, and after deducting the expenses and a reasonable compensation for their services, shall annually, or oftener if necessary, appropriate and apply all the income and profits of said estate to the support of the gospel, and the maintenance and support of a pastor or elder in the Six-Principle Baptist Church in said Swanzey, which was under the pastoral care of Elder Philip Slade, late of said Swanzey, at the time of his decease, and which shall continue in the faith and practice of the six principles of the doctrine of Christ, as recorded in the sixth chapter of Hebrews, first and second verses, and their successors in said church, as long as they or their successors shall maintain the visibility of a church in said faith and order, and uniting in fellowship and communion with those who hold and practice said principles, and no others. And I hereby direct that said income and profits of said estate shall be applied by said trustee and trustees as aforesaid to the maintenance and support of such pastor or elder as shall from time to time be appointed by a majority of said church, and shall be approved of by said trustee and trustees; and in case of any disagreement between said church and trustees in relation to the appointment and approval of a pastor, a pastor shall be approved of by the Rhode Island and Massachusetts General Conference of the old Six-Principle Baptist denomination; and whenever said trustee or his successor shall die or depart from said faith and practice, another trustee or trustees shall be appointed by said general conference, and said trustee or trustees so appointed shall have the same power and trust over said estate as said Thomas Tillinghast; and on the death or departure from said faith and practice of such trustee, other trustee or trustees shall from time to time be appointed by said general conference, with same power and trusts over said estate; and, in case of the failure of such appointment, my will is that a suitable trustee shall be appointed by the supreme judicial court of the commonwealth of Massachusetts, or any other court in said commonwealth,

having at the time jurisdiction over trustees and property holden in trust, so that said trust shall continue forever. And I do hereby empower said trustees to do all acts, and legally to make and execute_all instruments and contracts, in writing and otherwise, which shall be necessary for full and perfect execution of said trusts. And I hereby give, bequeath and devise to said church, and to their successors in said church, forever, the right and privilege to hold their meetings and communions in my dwelling-house as heretofore, with use of my chairs in said house, or so long as said house will accommodate said church."

It was alleged that in March, 1853, there were but two members of the Six-Principle Baptist Church in Swanzey; that they met with defendant trustee, and voted to call a meeting of the church, and that on the day of such meeting, although notice was given thereof, but two persons were present, when they voted, as the number of members were so small, to dissolve, which vote was duly entered on the records of the church; that defendant fraudulently induced two women, neither of whom had attended any meetings of the church for over 20 years, and did not attend the meeting called at the time of the dissolution, to meet, when the formality of admitting another member was gone through with; and that defendant, though duly informed of the proceedings by which the church had been dissolved, refused to release the homestead farm to plaintiffs, according to the prayer of the bill. The defendant demurred to the bill. Dennurrer overruled.2

METCALF, J. The devise of Elery Wood to the defendant was in special trust that he and his successors in the trust should appropriate and apply the income and profits of the devised property to the support of the gospel, and the maintenance of a pastor or elder in a church in Swanzey, of a certain faith and practice, as long as they (the members of said church), or their successors, should maintain the visibility of a church in such faith and order. And the plaintiffs have alleged in their bill that the visibility of said church has not been maintained; that, therefore, the devised property cannot be rightfully held any longer by the defendant; but that it has, by the statutes of the commonwealth, descended to them as the heirs at law of the devisor; and they pray, among other things, that the defendant may be decreed to release the property to them. The facts on which the plaintiffs rely in support of their allegation that the visibility of said church has not been maintained are set forth in the bill, and they are admitted by the defendant, for present purposes and effects, by his demurrer to the bill.

The first question in the case is whether the Six-Principle Baptist Church in Swanzey, for whose benefit Wood's devise was made, has ceased to maintain its visibility, or, in language more commonly used, ceased to be a visible church. If it has, then the second question is, 2 The statement of facts is abridged.

whether the plaintiffs, as Wood's heirs at law, are now entitled to the devised property, which is still in the defendant's possession.

1. The bill avers that on the 31st day of March, 1853, there were only two members of said church; that they, on that day, at a meeting called by public notice, voted and resolved that they would not any longer endeavor to maintain the appearance of a visible church; that they declared the same dissolved and extinct; and that the said vote and resolve were entered on the records of said church. This seems. to the court to have been a dissolution of the church, so that it thenceforth ceased to be a visible church in any sense, legal or ecclesiastical. Of course, the attempt afterwards made to admit members was futile.

If any of these alleged facts could have been safely denied or successfully admitted and avoided, the defendant should have filed an answer to the bill, and not have demurred to it.

2. The devise to the defendant of the property in question was doubtless a devise in fee (Cleveland v. Hallett, 6 Cush. 407); and having been made to him as trustee, and for a specific purpose only, he holds the property, since the failure of the trust by the extinction of the cestui que trust, not for his own benefit, but for the devisor's heirs at law, as a resulting trust, and is answerable to them for it (Hill, Trustees [2d Am. Ed.] 157, 184, 185). The precise mode of relief_to which the law entitles the heirs may be a subject for consideration hereafter.

3. PURCHASE IN NAME OF ANOTHER

WRIGHT v. WRIGHT.

(Supreme Court of Illinois, 1909. 242 Ill. 71, 89 N. E. 789, 26 L. R. A. [N. S.] 161.)

Appeal from Circuit Court, Jackson County; William N. Butler, Judge.

Suit by Richford Wright against Elizabeth Wright. From a decree for defendant on her cross-bill complainant appeals. Affirmed.

VICKERS, J. Richford Wright, appellant, filed a petition in the circuit court of Jackson county to have the dower and homestead of Elizabeth Wright assigned in certain lands of which Ellis Wright, father of appellant and husband of appellee, died seised. Elizabeth Wright answered the petition, admitting that Ellis Wright, her husband, died seised of all of the lands described in the petition except the west half of the southwest quarter of section 25, township 7 south, range 4 west of the Third principal meridian, which said tract appellee averred did not belong to Ellis Wright, but that in equity said 80 acres belonged to appellee. Appellee then filed a cross-bill, in which she

alleges that she was married to the deceased, Ellis Wright, in May, 1866, and lived with him as his wife until his death, in September, 1907. She charges in her cross-bill that at the time she married Ellis Wright she had money in her own right, which she had received as a pension from the United States government on account of the death of Benjamin Fannin, her former husband, which occurred on October 13, 1863, while said Fannin was a private soldier in Company A, ThirtyFirst Illinois Infantry; that appellee had drawn a pension at the rate of $8 per month from the date of Fannin's death until she married. Ellis Wright, in 1866; that her money was prior to the date of her marriage to Ellis Wright loaned to Hampton Crawford, whose note, signed by said Crawford and one Crain as personal surety, for $300, was then held as the separate property of appellee. She charges in her cross-bill that soon after her marriage to Ellis Wright, he having learned that she had this money loaned, insisted that she call it in and invest it in land; that she complied with her husband's request and collected the Crawford note, and gave the money to her husband, who in a short time thereafter purchased the 80 acres of land now in controversy, using for that purpose $120 of appellee's money, which was the full consideration paid for said land; that Ellis Wright took the deed to said land in his name; that the appellee and her husband moved onto said 80 acres and occupied it as a homestead until the time of her husband's death, September 30, 1907, and that appellee still so occupies said premises; that her said husband told appellee, before he bought this land, that it would be hers and that it would not burn up nor could it be stolen; that after the land had been bought and the husband had taken the deed to himself he often told the appellee that it would be a home for her, and that he would change it. The cross-bill prays for the conveyance of the legal title to be made to appellee, on the theory that a resulting trust existed which appellee is entitled to have executed by a conveyance to her of the legal title.

Richford Wright, a son of Ellis Wright by a former marriage and only surviving child, filed an answer to appellee's cross-bill, denying that appellee paid the consideration for said land or any part of it, and charged that his father, Ellis Wright, paid the whole of said consideration with his own money, and that he died holding both the legal and equitable title to said land. A replication to this answer was filed, and the issue thus joined was tried by the circuit court of Jackson county upon evidence presented in open court and a decree rendered in accordance with the prayer of the cross-bill, ordering a deed made conveying to appellee the legal title to the 80 acres involved within 30 days, and, in default, that the master execute such deed. The court also decreed that appellee have dower assigned to her in other real estate of which Ellis Wright died seised. From this decree Richford Wright has appealed to this court, and assigns error upon that branch of the decree which grants appellee the relief prayed for in her cross-bill.

The following is a statement of the principal facts proven on the trial:

Certified copies of pension certificate and vouchers were introduced in evidence, which show that Elizabeth Fannin, widow of Benjamin Fannin, drew a pension at the rate of $8 per month from the 16th day of October, 1863, to May 31, 1866, a total of $252. She loaned $300 to Hampton Crawford, who then lived in Perry county near the Jackson county line. Riley Crawford, a man now about 80 years old and a brother of Hampton Crawford, testified that he knew appellee prior to her marriage to Ellis Wright; that he knew that his brother, Hampton, had $300 borrowed from Elizabeth Fannin; that he was at his brother's house when appellee came and demanded that his brother pay the note; that she said her busband wanted her to collect the note and buy a piece of land; that his brother Hampton, told her, in his presence, that he did not have the money, but would get it in a few days and bring it to her, and that afterwards he saw the note in his brother's possession and it was payable to Elizabeth Fannin, and that the note was burned in witness' house. This witness testifies that he knew the note was paid from having seen it afterwards in his brother's possession. A deed to the land in question from Eliza A. Belsha, Francis S. Smith, and Mary C. Smith to Ellis Wright, dated August 1, 1867, was offered in evidence. Mary Richards, a sister of appellee, testified that after appellee married Wright she visited them very often; that she was at their house almost all of the time; that she remembers the circumstance of the purchase of the land in controversy; that her sister had money loaned which she had received as pension on account of the death of her first husband; that she was present and saw her sister give the money to Wright, and that afterwards Wright told her he had bought this land with that money; that Wright told his wife that it was much better to buy land, because it would not burn up and no one could steal it, and that it would be a home for his wife; that he always called his wife "woman"; that he said in her presence: "Woman, I bought this land with your money, but the deed is made in my name. I can change it at some other time." She testifies that the consideration paid for the land, according to her recollection, was somewhere between $125 and $140. The exact amount she was unable to remember. This witness in the second deposition given by her states that she often heard Wright say he would deed the land to appellee, but, in order to do so, it would be necessary for him to deed it to a third person, and have said third person convey to appellee, and that he was afraid to do that because such third person might be unwilling to convey to appellee, She testifies that she was present when Crawford came in the afternoon and paid the appellee the money, and that it was given to Wright that evening.

Selden Johnson testifies that he went with Ellis Wright when he made a trip to Chester to see about buying this land; that afterwards he heard Wright talking about the trouble he had in buying the land, and he said that Robert Grant had possession under an old mortgage which was not good and that he could defeat Grant's claim; that this was in